By Nancy Burner, ESQ.
QUESTION: I recently signed a health care proxy naming my daughter to make health care decisions for me. Is she able to access my medical records and speak to Medicare and my supplemental health insurance company?
ANSWER: It depends on the information your health care agent is attempting to gather. A health care proxy is a document in which you designate an agent to make health care decisions for you in the event you are unable to make these decisions for yourself.
The health care proxy often contains language allowing your health care agent to hire and fire physicians and health care professionals. Federal regulations, specifically HIPAA, or the Health Insurance Portability and Accountability Act, make it difficult for anyone, even a spouse, to obtain any medical information on your behalf absent a properly executed health care proxy.
You must read the health care proxy carefully and make sure the document gives your agent the ability to do exactly what you would like them to do, for example, have access to your medical records. It is also important to note that signing a new health care proxy will revoke the previous health care proxy you may have signed in the past. This is important when you take the time to establish a comprehensive health care proxy and then go to the hospital and sign a very basic health care proxy with the staff at the hospital, which will revoke the comprehensive one you signed previously.
In addition to the health care proxy, you can sign a HIPAA release form, which would allow the individuals listed in your health care proxy access to your medical records. The health care proxy itself may give the same authority; however, the HIPAA release form is a very simple form that is easily recognizable by most hospitals and doctors offices. This can simplify the process to get medical records instead of using the health care proxy.
In order for your agent to deal with Medicare or another health insurance company, even a properly drafted health care proxy is typically not enough. In many circumstances, a durable power of attorney is required in order for a third party to speak with these companies on your behalf. A validly executed power of attorney will allow you, the principal, to designate an agent to act on your behalf and virtually step into your shoes with respect to all of your matters. The HIPAA can facilitate the exchange of information between your health care providers and health insurance companies with your agent.
If you want to ensure that your designated agent has the ability to communicate on your behalf, there are a few steps that you can take now in conjunction with getting your estate planning documents in order. If you are enrolled in Medicare, there is a simple way of getting your agent on file. If you visit https://www.medicare.gov/MedicareOnlineForms/AuthorizationForm/OnlineFormStep.asp, you will be able to fill out an electronic form in order to make sure Medicare will speak to your agent in the event of your incapacity. Additionally, if you have other insurance or supplemental insurance, call the individual company and find out how to get your agent on file.
When a loved one is sick or incapacitated, the family is usually under a lot of stress and needs to deal with multiple agencies. If the authority is already established, it may help to alleviate some of the complications loved ones face. If you have any questions regarding your estate planning documents, you should visit your local elder law attorney.
Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.